People the law forgot (part two)

It is almost two years since the Guantanamo prison camp opened. Its purpose is to hold people seized in the 'war on terror' and defined by the Bush administration as enemy combatants - though many appear to have been bystanders to the conflict. Images of Camp Delta's orange-jumpsuited, manacled detainees have provoked international outrage. But the real horror they face isn't physical hardship, it is the threat of infinite confinement, without trial or access to legal representation. James Meek has spent the past month talking to former inmates and some of those involved in operating the Pentagon's Kafkaesque justice system. He has built an unprecedented picture of life on the base, which we present in this special issue

Guantanamo is a bleak, dull, repressive place for its inmates. Yet there is something about it which may not be immediately apparent to Europeans dismayed by the level of security, the chains and the punitive, degrading way the prisoners are caged: it is not dissimilar to facilities in the harsh US civilian prison system. By focusing on physical conditions, there is a risk of missing the unique aspect of Guantanamo - the arbitrary, unprecedented and unfair way in which President Bush and his administration have confined hundreds of people without either any idea how long they are to be locked up, or any way to plead their case. It is this which the legal establishment in the US and Europe finds most menacing. It is this which causes the greatest mental torment to the prisoners and their families. And the strange Pentagon creatures that have been set up to try some detainees, the military commissions, are, the Guardian has learned, troubling even the uniformed lawyers signed up to make them work.

"Prisons are a big industry in the US," says Daryl Matthews. "We imprison a lot of people. People don't understand the extent and the misery of prisons in the US. People who are considered the most dangerous people in the US are moved in shackles. I've been in prisons in the US much more secure than Guantanamo. I've interviewed people in masks and shackles on the mainland US. These are scary places. I don't think the issue for the Guantanamo folks is their conditions of confinement. It's easy to be fascinated by a place you can't get to but that's not the issue. The issue is human rights."

Matthews, who opposes the death penalty, none the less provides psychiatric advice to courts in civilian capital cases. Yet he is still wrestling with his conscience over whether to provide the same service to the military commissions that will try the Guantanamo detainees. The commissions have the power to impose the heaviest sentences, up to and including death. Unlike the rapists, child abductors and serial killers on capital charges in the US, unlike the Oklahoma bomber Timothy McVeigh, cold war Soviet spies or Nazi war criminals, unlike even the shoe bomber Richard Reid, the confessed terrorist and al-Qaida supporter, the hundreds of people locked up in Guantanamo have neither been told why they have been deprived of their liberty for two years, nor when or how they might be released, charged or tried, nor given any opportunity to challenge their status before a tribunal.

That isolation and uncertainty, Matthews points out, puts an extra burden on the detainees. "Most of the stresses that operate on the Guantanamo detainees would operate on anyone in a maximum security facility [on the mainland US]," he says. "They're bored, it's noisy, they have no privacy, they get some exercise but not very much. They have to deal with strangers who don't like them all the time, guards and other inmates. They don't have access to personal objects. It's horrible being a prisoner... when I read about your British detainees, and families being concerned that people are being tortured because they are depressed, I wish I could tell the families it doesn't need torture to make someone depressed in prison. Just a normal prison environment produces profound alteration in mental states, suicide and depression.

'But at Guantanamo there's an added level of stress, and I think that is the thing that's somewhat unique... Inmates in a normal prison are focused on how much time they are going to serve, on contacting their lawyers, on being able to take constructive efforts to get out; these are important ways prisoners deal with the stress of confinement, and these guys can't do anything.'

When the terrorists attacked the US on September 11, the world found in Bush and his attorney-general, John Ashcroft, men who had already embraced the idea that large-scale incarceration and executions were the way to fight wrongdoing, who wanted to encourage judges to impose harsher sentences, and who felt that defence lawyers were the bane of justice. The leash-is-off rhetoric of the 'war on terror' fitted naturally into the rightwing narrative of recent history, which portrayed spineless liberals betraying the victims of crime by too scrupulous a concern for the rights of suspects.

Ashcroft makes the link explicit. In a recent speech, close to the second anniversary of 9/11, he boasted that the Bush administration had used the same tactics to fight terrorism as to fight crime. 'For almost two decades, some in Washington have preached defeatism and surrender in the battle against the drug smugglers, the criminal and the lawless,' he said. 'At one time, elite opinion held that law enforcement and citizens could not do anything. They believed we were doomed to live with rising crime. They argued that criminals were driven by circumstance and root causes beyond our control... The ideological critics were proven wrong... We have proven that the right ideas - tough laws, tough sentences, and constant cooperation - are stronger than the criminal or the terrorist cell.'

A foretaste of how the Bush administration planned to avoid 'defeatism and surrender' in pursuit of terrorists came with the detention of more than 1,000 foreign Muslims in the US in the immediate aftermath of 9/11. Although they were technically held for outstaying their visas and other workaday immigration offences, 762 of them were investigated for suspected terrorist links. Few, if any, were ever charged with anything terrorist-related, but all had to wait weeks or months to be cleared by the FBI. Those held in one detention centre, in Brooklyn, were initially prevented from contacting family and lawyers; some experienced violence and racist abuse.

The presidential order that created the basis for the Guantanamo prison camp, and for the military commissions that will try any of the detainees charged with terrorist offences or war crimes, was published on November 13 2001, the day the Northern Alliance took control of Kabul. With the sudden, unexpected fall of Mazar-i-Sharif in the north a few days earlier, it became clear to the Bush administration that they were about to have access to hundreds, perhaps thousands of Taliban and allied fighters, some of whom might be terrorists. The question suddenly became urgent as to what status to give the captives so that the US could interrogate them, detain them at the president's pleasure, and punish them. At the time, hopes were high of capturing Bin Laden himself. The Guantanamo detainees may to some extent be paying the price for the Americans' inability to capture the al-Qaida leader. In a sense, Guantanamo is St Helena without Napoleon, with the dregs of the Grand Armee locked up instead.

Practical templates were available in international law that, on the face of it, would have allowed Washington to satisfy its aims. It remains a mystery as to why the Bush administration chose not to follow international law, but to make up its own. Its first step away from international norms was to refuse to categorise the Afghanistan captives as prisoners of war. One source told me of a - possibly apocryphal - story that Bush and his aides were going through the Geneva convention when the president came to the part that declares PoWs must be paid between eight and 75 Swiss francs a day. At this point, the story goes, Bush lost his temper and ordered his people to find a way for the captives not to be PoWs.

Officially, the US hides behind the fact that the resistance in Afghanistan didn't dress like soldiers. It is true that, like CIA operatives in the field in Afghanistan and Iraq, and like many of the Northern Alliance allies of the US, the Taliban and non-Afghan fighters didn't wear uniforms, but that does not prevent them being declared prisoners of war. Article 5 of the Third Geneva Convention is clear: any captured belligerent whose status is uncertain should be considered a PoW until their status is settled by a 'competent tribunal'. The US carried out hundreds of these tribunals during the 1991 Gulf war and in the recent Iraq war. In Afghanistan, it didn't. Asked why there hadn't been any tribunals for the Afghan captives, Major John Smith, a military attorney in the Pentagon department organising the forthcoming trials of Guantanamo detainees, says it is because the president decided there was no need.

'The president's decision was that there was no doubt these individuals did not qualify for PoW status and a tribunal wasn't required,' he says.

Eugene Fidell, a former military lawyer, now president of the National Institute of Military Justice in the US, said that the decision not to hold tribunals had deprived his country of the moral high ground. 'Whether that policy decision was right or wrong, or wrong in part, let's say, as to al-Qaida or Taliban members, it represented a fork in the road. And the path taken has had, I think, a very poisonous effect on our standing in the world community.'

Had there been formal tribunals, the US could still have interrogated, charged and tried the PoWs. They might also have screened out some of their more pathetic captives before they had to endure Guantanamo, such as Mohammed Hagi Fiz, a toothless, fragile old Afghan in his 70s, released in October 2002, or Abdul Razeq, an Afghan suffering from schizophrenia, released in May 2002 with a six-month supply of medication.

The strangeness of the US position is that although it does not consider the Guantanamo captives prisoners of war in the formal, Geneva Convention sense, it considers them prisoners of war in one very specific sense - that they can be held until the war is over. It calls them 'enemy combatants', a term not recognised in international law. To the question 'What war?', the Bush administration responds: 'The war on terror.' In other words, the captives can be held for as long as the US president likes; until forever, in fact, since, unlike normal wars, where a particular territory and a particular military entity is involved, this one exists only as a concept. The 'war' was going on before September 11 2001 - it is hard to think of a year in recent decades in which US citizens or US interests have not come under terrorist attack - and it is difficult to see how any US leader could ever take the political risk of declaring a 'war on terror' to have finished. The US persists in claiming that the 'war' can and will be won.

'Detention as an enemy combatant is not criminal, it's to take them off the battlefield,' says Smith. 'We are at war with al-Qaida. It's not a metaphorical war, it's a real war.' At one point in our conversation he compares the US in 2003 to Britain in 1941. 'I believe we will be able to defeat al-Qaida. It's a political situation, and it's a tough decision, but I think at some point we will be able to say that al-Qaida is no longer a threat to the US... at some point, al-Qaida and terrorism will be defeated.'

Yet enemy combatant status, combined with the lack of Article 5 tribunals, means that the Guantanamo detainees are kept captive until the end of a potentially endless 'war', without the opportunity to plead before a court that they had nothing to do with that 'war.' The US does not consider itself obliged to put them on trial, so has no obligation to give them lawyers; even if they are put on trial, and are acquitted, under its own rules, the US might simply lock them up again.

'It seems to me that our government's talking out of both sides of its mouth,' says James Harrington, a lawyer from upstate New York who represents a US citizen, not in Guantanamo, awaiting sentencing on terrorism charges. 'We say they're not PoWs and won't be treated as PoWs but at the same time we say we are at war. It either should be one or the other. If we are trying to say to the rest of the world we have due process and best practice in our country... we shouldn't be treating other people in ways that are unfair. These guys get picked up, shipped to somebody else's country, held there so they aren't in the US so they don't get the same rights as in the US, and then get treated by rules made up by the government to suit the government's interests.'

Louise Christian, a British lawyer representing three of the Britons held in Guantanamo, said the US today looked more like Britain in the 1970s than in the 1940s. 'It's the same thing that happened in this country when we had mainland bomb attacks from the IRA, that the tremendous panic and fear just replaced everything else. There was no understanding in this country of how we were viewed outside,' she says. 'We locked people up arbitrarily. We ignored the fact that people were being coerced into making confessions. But I think also the daily experience of internment, seeing your best friends and neighbours locked up without cause, led to great bitterness, and the continuing of the conflict in Northern Ireland, because of feelings of injustice. Obviously there were people who did do terrible things. But if the government response is to criminalise a whole category of people, all we do is increase support for people who are guilty.'

Having hurriedly come up with the 'enemy combatant' notion to deal with the hoped-for capture of Bin Laden, and having applied it to the ragbag of captives picked from Northern Alliance jails in Afghanistan, the US government has become so comfortable with it that it has begun to wield it around the world, and at home, in ways that frighten rights activists and lawyers. Now, it appears, anyone, US citizen or not, can be declared an 'enemy combatant', at any time, and thus be detained indefinitely at Bush's discretion.

Enemy combatant status is leaking out of Guantanamo and into the mainland US. There are now three 'enemy combatants' held in US military jails. One is a Qatari computer student living in Illinois, Ali Saleh Kahlah al-Marri. He was awaiting trial on low-grade criminal charges indirectly linked to terrorism when, immediately after the government's case against him looked to be in trouble, the Bush administration declared him an 'enemy combatant' and moved him to a high-security naval prison, allowing a trial to be avoided, and the accused to be held for as long as the president likes.

Bush's November 13 order refers to 'enemy combatants' being 'treated humanely, without any adverse distinction based on race, colour, religion, gender, birth, wealth, or any similar criteria'. Yet it is hard to equate the starkly differing treatment of three men allegedly found fighting alongside the Taliban with this creed. The only white American in that category, John Walker Lindh, was given a criminal trial, the full panoply of legal rights, and swiftly sentenced. Another American citizen, but of Saudi descent, Yasser Hamdi, was moved from Guantanamo to a naval prison on the mainland US, and is still held there incommunicado as an 'enemy combatant'. Compare that to Mohamed Tariq, an ordinary Pakistani from Shah Mohammed's village, not yet released. There is no reason to think he did anything that Lindh or Hamdi did not do. But he remains on Guantanamo. Speculation that a mass release of European prisoners is imminent, welcome as it is, only highlights the arbitrary nature of the detentions.

Nothing illustrates the US government's new power over suspects, and the unfairness of its treatment of the Guantanamo detainees, better than the case of the Lackawanna Six - a group of Yemeni-Americans from a suburb of Buffalo, who were accused of aiding al-Qaida. In the end, all pleaded guilty - but only after prosecutors had dropped heavy hints that they would be declared 'enemy combatants' if they didn't.

'Basically, what was related to us was that if the case was not resolved by a plea, the government was going to consider any options that it had,' says Harrington, attorney for one of the men, Sahim Alwan. 'They didn't say they were going to do it [declare them 'enemy combatants'], they just were going to consider it.

'Even as vague a definition as 'enemy combatant' is, it didn't seem it would apply in this particular case, but given the way that the government has used their authority, obviously it was something that was a concern for us. It was a factor my client took into account. He was worried about it. I think it's an improper use of the procedure first of all. It's pretty heavy-handed.' In the end, the group were allowed to remain within the civilian justice system, in their home country, the US. They had access to legal counsel. The Bush administration was happy to use its 'enemy combatant' device against them if things did not seem to be going the prosecution's way, but equally happy to let them go through the normal civilian courts. Those Guantanamo detainees who are to face trial have no such option. They are to face a different kind of court entirely - military commissions - a system that has been condemned internationally, by the US legal establishment and, the Guardian has learned, is regarded with dismay even by some of the uniformed lawyers whose job it is to make it work.

The government has had to dig back into two arcane cases involving Nazi agents six decades ago, before the Geneva Conventions were even written, to find precedents for military commissions, and, as with the skipping of PoW tribunals for the Guantanamo detainees, it is a mystery why they did so. They had at least two other options: the civilian criminal courts, as used to try past terrorist cases, such as the 1993 World Trade Centre bombing, and court martials in the US military courts, as used to try the deposed leader of Panama, General Manuel Noriega. The Bush administration defends the choice of military commissions on the grounds that the alleged, presumably terrorist, offences for which some Guantanamo prisoners will be tried are 'war crimes'; and on the grounds that the commissions will help safeguard classified information that would leak out from normal trials or courts martial. Critics say that neither argument stands up, and that the real reason military commissions are being used is that they give the accused little chance of a fair hearing, and stack the deck in favour of convictions.

The two facets of the commissions that have drawn the most fire are that the government assumes the right to listen in to any conversations between defence lawyers and their clients, and that, once convicted, the accused have no possibility of having their case reviewed by an independent appeal body. But there is more in the detail of how the commissions are supposed to work that reads like pages from Franz Kafka's workbook.

The first thing that strikes the lay student of military commissions is the enormous power vested in the US deputy secretary of defence, Paul Wolfowitz, who is the commissions' 'appointing authority'. The judges - seven in a capital case - are appointed by Wolfowitz. Any judge can be substituted up to the moment of verdict, by Wolfowitz. The military prosecutors are chosen by Wolfowitz. The suspects they charge, and the charges they make, are determined by Wolfowitz. All defendants are entitled to a military defence lawyer, from a pool chosen by Wolfowitz. The defendants are entitled to hire a civilian lawyer, but they have to pay out of their own funds, and by revealing where the funds are, they risk having them seized on suspicion of their being used for terrorist purposes, on the order of Wolfowitz. Defendants need not lose heart completely if convicted. They can appeal, to a panel of three people, appointed by Wolfowitz. When it has made its recommendation, the panel sends it for a final decision to Wolfowitz.

'That's the system,' says Clive Stafford-Smith, a British-American lawyer known for representing death-row clients and who now represents some of the Britons on Guantanamo, although he has never been allowed to meet them. 'It's a multi-headed Hydra with Paul Wolfowitz's face on every head.'

Given the obstructions in the way of civilian lawyers - they have to be US citizens, they have to get security clearance at their own expense, they have to abandon their practices and move to Guantanamo permanently for months on end - conscientious military defence lawyers seem to be the best hope of a fair trial for many of the detainees charged.

The Guardian has learned of deep unhappiness among the relatively small pool of experienced military defence lawyers that the Pentagon can call upon to do that job. There is anger both at the restrictions being placed on them, and the fact that the Bush administration has gone back to the 1940s for a court model, ignoring six decades of evolution of the sophisticated US military justice system.

The Pentagon's Office of Military Commissions has six full-time military defence attorneys working for it. The only one to have been publicly identified is the chief defence counsel, Colonel Willie Gunn. The Guardian understands that the remaining five are not the lawyers originally recruited, but that the original volunteers were dismissed after refusing to sign a paper agreeing to the restrictions they would work under.

'There was a circular that went out to military lawyers in the early spring of 2003 which said 'we are looking for volunteers' for defence counsel,' says a former military lawyer. 'There was a selection process, and the people they selected were the right people, they had the right credentials, they were good lawyers. The first day, when they were being briefed on the dos and don'ts, at least a couple said: 'You can't impose these restrictions on us because we can't properly represent our clients.' When the group decided they weren't going to go along, they were relieved. They reported in the morning and got fired that afternoon.'

The Office of Military Commissions denies the claim. 'That is not true, never happened,' says Major Smith. 'The military commission is a tool of justice. I expect some of these individuals [on Guantanamo] will plead not guilty, and will be represented zealously by their lawyers.'

Yet the Guardian understands from a uniformed source with intimate knowledge of the mood among the current military defence team that there is deep unhappiness about the commission set up - a disturbing situation when the death chamber may await those found guilty.

'It's like you took military justice, gave it to a prosecutor and said: 'Modify it any way you want," the source says. 'The government would like to say we have done these commissions before. But what happened after [the Nazi cases] was that the military justice system changed... What we have done is stupid. It is, I would say, an insult to the military, to the evolution of the military justice system. They want to take us back to 1942.

'What sort of justice are we taking to Iraq and Afghanistan? The constitution talks about justice. Is it only for America?'

As an illustration of the slapdash way he considers the commissions have been set up, he points to how a rule has been removed that barred defence lawyers, once they had arrived in Cuba, from carrying out research outside Guantanamo. Instead of the formal issuing of a new instruction, the Pentagon simply went to the commission website and rewrote the offending paragraph.

'They went on the internet and just substituted the new passage, leaving the old date. I can't think of a better example of how these processes were created. They were going to make the rules and change them when they felt like it.'

The source points out that under the rules, whereas the head of the Pentagon's prosecution team, Colonel Frederic Borch III, could lead the government's case in court, his defence counterpart, Colonel Gunn, was not allowed to take part in commission proceedings at all.

'We could have had some people make rules that no one would complain about but they didn't. We had a bunch of like-minded people and yes-men. It's shocking how many articles I read and no one is picking up on the fact that Colonel Gunn is just a puppet. It's a farce.'

Eugene Fidell says that the military law establishment - there are around 5,000 active duty lawyers in the US military - have been infuriated by a comment piece in the New York Times by Alberto Gonzalez, the White House counsel, which suggests that the US military justice system and military commissions are the same thing.

'What the Bush administration did was literally use as a model a set of rules Roosevelt signed for dealing with German saboteurs in the second world war, seven years before the Geneva Conventions. It baffles me how the government got into this position. We have an [appeals] court that's been around for 53 years and which has built up a huge body of law. To rely on this review panel instead of using that court, it's indefensible.'

And Wolfowitz's role? 'It's right out of the Mikado, isn't it... the government has created something as close to being hermetically sealed as the human mind is capable of creating.' The supreme court is now pledged to examine the legality of what is happening on Guantanamo next year. 'I think Americans are very uncomfortable with all this,' says Fidell. 'I mean, prison islands in tropical regions give us a real bad feeling, whether it's Devil's Island, or Robben Island, or Norfolk Island. This is not a role that comes to us naturally.'

'One of the prosecutors told me that they think 30% of the people in Guantanamo Bay were nothing to do with anything. They were just in the wrong place at the wrong time,' says Clive Stafford-Smith. 'When the prosecutor tells you 30%, I tend to think it's more like 70%. But the bottom line is we're not talking about 600 of the worst people in the world. We're talking about at least a couple of hundred who didn't do anything.

'You kidnap people who may be totally innocent, you take them all the way around the world in hoods and shackles, you hold them incommunicado for two years, you don't give them a lawyer and you don't tell them what they're charged with. It's not a matter of what's wrong with it, it's a question of what's right with it. And it achieves nothing.'

Shah Mohammed was given no apology or compensation when he was released, just a three-paragraph letter from a unit based at Bagram airport in Afghanistan, called CFTF180-Detainee Ops. It is signed by a soldier with a rank lower than corporal, Joseph P Burke. It reads: 'This memorandum is to certify that Shah Mohammed Alikhel [his tribal name], ISN-US9PK-00019DP, was detained by the United States Military from January 13 2002 to Mar 22 2003.' The letter is dated May 8; in other words, Mohammed was kept prisoner two months longer than the US wanted him.

Despite interrogating him nine or 10 times, the letter goes on to say that the US has no record of Mohammed's place of birth. The letter concludes: 'This individual has been determined to pose no threat to the United States military or its interests in Afghanistan or Pakistan. There are no charges pending from the United States against this individual... the United States government intends that this person be fully rejoined with his family.'

'If they kept me for 18 months and sent me a letter to certify I'm innocent, then why did they keep me there for 18 months?' asks Shah Mohammed. 'Don't they have any duty or obligation to me?'

Even less than a duty - a nameless grudge: despite declaring him harmless, the US military transported him home to Pakistan as it had brought him to Cuba - in chains.